Citation Nr: 1453211
Decision Date: 12/03/14 Archive Date: 12/10/14
DOCKET NO. 12-25 207 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for a duodenal ulcer.
2. Entitlement to an effective date earlier than July 1, 2011 for the grant of service connection for a duodenal ulcer.
REPRESENTATION
Veteran represented by: Kentucky Department of Veterans Affairs (KDVA)
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Gallagher, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1969 to March 1969. This appeal is before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran's substantive appeal in this case was filed in August 2012. In October 2012, VA received a Form 21-22 showing that the Veteran had appointed Disabled American Veterans (DAV) as his representative. In November 2013, however, when VA notified the Veteran of his January 2014 videoconference hearing, VA failed to send a copy of the notice to DAV.
The transcript of the Veteran's January 2014 hearing reflects that the Veteran was surprised to find that his representative was not in attendance. Though the Veteran elected to proceed with the hearing without representation, it was clear that he had anticipated the preparation and assistance of a representative from DAV, and at its conclusion he indicated that he did not fully understand the hearing itself. On the same day, the Veteran appointed his current representative, KDVA, presumably after the conclusion of his hearing. In a July 2014 statement, the Veteran requested a second hearing so he could present his case with representation.
VA regulations provide veterans with the right to appear at a hearing before the Board, as well as the right to be notified of the time and place of a scheduled hearing. See 38 C.F.R. §§ 20.700, 20.702(b). Regulations further provide that an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. See 38 C.F.R. §§ 3.103(e), 20.600 (2014). The Board finds that VA's failure to notify DAV of the scheduled hearing has denied the Veteran his due process rights. In view of the failure of due process in this case, it is as if the January 2014 hearing did not take place. As such, there is no requirement under the circumstances of this case for the undersigned Veterans Law Judge (VLJ) conduct the hearing so as to avoid the requirement for a panel of VLJ's to conduct a hearing and/or render a decision. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, in the interest of efficiency, it is preferable that the undersigned VLJ conduct the hearing.
Accordingly, the case is REMANDED for the following action:
Schedule the Veteran for a Board of Veterans' Appeals videoconference hearing at the earliest available opportunity. Appropriate notice to the Veteran's representative shall be provided.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).